KIERAN TAPSELL. A Different Scorecard on Pope Francis

Pope Francis has rightly been acclaimed for his stand on climate change, poverty, inequality and refugees, but on these issues he can only encourage others to act. When it comes to the role of the laity in Church governance and the cover up of child sexual abuse, Pope Francis’ rhetoric does not match his actions. He will never have the moral authority of a Nelson Mandela while he refuses to initiate changes to canon law that would bring them into line.

Bruce Duncan’s article sets out Pope Francis’ very positive scorecard on issues such as climate change, poverty, inequality, violence and refugees, for which he has rightly been acclaimed.

However, Pope Francis personally can do little about them. He can only encourage others to act. On the other hand, there are two issues about which he can do something within his own Church, namely the role of the laity in Church governance and the cover up of child sexual abuse, where his scorecard reveals that he has badly failed.

Popes are absolute monarchs when it comes to canon law. They have no Houses of Parliament to restrict them, and no Supreme or High Courts to set aside their laws. Their only “constitution” is Scripture and Tradition.

Pope Francis may feel restrained by Scripture and Tradition from having women priests. But there are three other significant positions in Church governance which have no sacramental or liturgical role, and which canon law says cannot be filled by lay people.

Bishops have supreme legislative, executive and judicial power within their own dioceses with canon law being their only restriction. Canon law permits the delegation of executive power to vicars general and episcopal vicars, and judicial power to judicial vicars, but Canons 478 and 1420 require all of them to be priests.

The admirable Bishop Long from Parramatta has recently appointed Sr Catherine Ryan to be his chancellor. Canon law does not require chancellors to be priests.

In Germany, the United Kingdom, and universities, the title “chancellor” carries with it significant executive authority. The role of the chancellor under canon law is to take care of the bishop’s curia records and archives. The bishop’s “chancellor” is a fancy name for a secretary or administrative assistant.

Bishop Long could not have appointed Sr Ryan to be his vicar general or an episcopal vicar. He could not have appointed a lay person, male or female with impeccable canon law qualifications to be a judicial vicar. These canons embody the clericalism that Pope Francis frequently condemns.

The most serious failure on Pope Francis’ scorecard is in relation to child sexual abuse. The pontifical secret is still imposed by canon law on all allegations and information about child sexual abuse by clergy with the only exception (since 2010) where there are civil laws requiring reporting. Most countries in the world have inadequate reporting laws.

The Church’s tradition and canon law spanning back 1500 years taught that child sexual abuse is a crime that needed to be dealt with by punishments that we now only associate with the secular state, and which required imprisonment at the minimum. Seven papal and Council decrees dating back to the 12th century required clergy guilty of such crimes to be stripped of their status as priests and handed over (not just reported) to the civil authorities for punishment – irrespective of whether the civil law required it. In 1917, these decrees were repealed, and in 1922, the Church’s strictest form of secrecy was imposed on all information about these crimes.

Since 1996, the Irish, British, Australian and American bishops have wanted mandatory reporting under canon law irrespective of reporting requirements under civil law. The Holy See has consistently rejected the requests. In 2012, the Australian Catholic Bishops Conference sent to the Vatican for approval Towards Healing 2010 which required mandatory reporting. On 22 February 2013 the Holy See informed the Conference that mandatory reporting could apply to everyone else in the Church but not to clerics, and that the law imposing the pontifical secret still applied to them. Protecting priests sex abusers from the civil law by the use of secrecy is a further example of pure clericalism.

In 2014, the Italian Catholic Bishops Conference (of which Pope Francis is the senior bishop, while not its President) announced that Italian bishops would not be reporting clergy sexual abusers to the police because Italian law did not require it – a position consistent with canon law.

In 2014, two United Nations Committees, on the Rights of the Child and against Torture, requested Pope Francis to impose mandatory reporting under canon law. This was no more than a request for the Church to return to its centuries-old tradition that existed before 1917. In September 2014 Pope Francis refused, with the extraordinary excuse that mandatory reporting under canon law would interfere with the sovereignty of independent states. Canon law interferes with such sovereignty as much as the rules of golf.

On 15 February 2016, Cardinal O’Malley, the President of the Pontifical Commission for the Protection of Minors stated that bishops have an ethical and moral obligation to report all allegations of clergy sexual abuse to the civil authorities irrespective of whether there were civil reporting laws. On 6 December 2016, the Commission published its guidelines for national bishops conferences. O’Malley’s statement was not included.

Pope Francis has repeatedly claimed that he and his predecessor, Pope Benedict, have adopted a “zero tolerance” policy towards child sexual abuse. In the professional context, zero tolerance means permanent dismissal. Yet the figures Pope Francis produced to the United Nations in 2014 showed that less than one quarter of all priests who had sexually abused children had been dismissed. That’s 75% tolerance, not zero.

In 2017, Archbishop Coleridge told the Royal Commission that he had requested the dismissal of six priests who had been convicted of child sexual offences. The Holy See only agreed to dismiss one.

The scorecard on Pope Francis over child sexual abuse can best be expressed by Marie Collins, a victim of clergy sexual abuse, who was appointed with much public acclaim as a member of the Pontifical Commission for the Protection of Minors. She resigned on 9 February 2017:

“When I accepted my appointment to the Commission in 2014, I said publicly that if I found what was happening behind closed doors was in conflict with what was being said in public, I would not remain. This point has come. I feel I have no choice but to resign if I am to retain my integrity.”

The failures of Pope Francis to live up to his rhetoric are not the actions of a Nelson Mandela.

16 Responses to KIERAN TAPSELL. A Different Scorecard on Pope Francis

It is no wonder Catholic Archdiocese of Sydney Most Reverend Anthony Fisher OP made a ‘plea’ for national mandatory reporting for clergy when cross-examined at the Royal Commission into Institutional Responses to Child Abuse.
Urgent change is required by the Pope as Bishop’s worldwide remain under oath to abide by the directives of Canon Law. This example explains: ‘In 2017, Archbishop Coleridge told the Royal Commission that he had requested the dismissal of six priests who had been convicted of child sexual offences. The Holy See only agreed to dismiss one.’
In Australia, three states: Queensland, Western Australia and Tasmania have no civil laws requiring clergy to mandatory report child abuse and 99% of countries in the rest of the world have no mandatory reporting laws.

I am not sure it is true to say that 99% of countries don’t have reporting laws. Certainly it is true to say that there are very few jurisdictions that have comprehensive reporting laws covering both children at risk and historical abuse. Some have raised the argument that if the State does not imposed mandatory reporting then why should the Church be obliged to do so? That would be a fair question if canon law did not impose the pontifical secret because bishops who felt bound in conscience to have the police investigate the allegations could refer the matter to them. Secreta Continere, applied by Art 30 of Sacramentorum Sanctitatis Tutela is quite clear: bishops have no right to exercise their consciences in the case of matters covered by the pontifical secret. The current state of canon law is scandalous because the only inference one can draw from the refusal of Pope Francis even to provide for an exception to the pontifical secret to allow reporting in all cases is that he fully intends that the cover up should continue wherever the Church can get away with it, that is, in the many jurisdictions with inadequate reporting laws.

Canon law? It’s of significance only to lawyers. Most priests have a minimal training in it and do not refer to it in their ordinary duties. Most bishops are not up to date with it. Many have ignored it, e.g. in keeping a secret archive. That was obvious in testimony before the Royal Commission. Have bishops suddenly taken to Canon Law? Why this emphasis on an aspect of the Church that is relatively unimportant and doesn’t explain the conduct of bishops, the conduct of the curia or the conduct of abusers?

Most citizens have no training in civil law and do not think about it in their everyday lives. When it affects them, they consult a solicitor. Most Catholics don’t know much about canon law or think about it until their marriage breaks down and want to remarry in the Church. They then consult a canon lawyer and quickly learn about it. Bishops who are not canon lawyers have canon lawyers to advise them. If canon law is relatively unimportant in the Church, why are all these people in the Church wasting their lives studying it, obtaining licentiates and doctorates in it, teaching it, and setting up faculties of canon law? Church officials are required to swear oaths to obey it. The Murphy Commission in Ireland and the Attorney General’s Report in Massachusetts confirmed that the secrecy imposed by canon law was a major factor in the cover up. The Royal Commission is yet to report on it, but the Nestor case demonstrates that canon law played a big role in what happened there. Both Professor Parkinson and the Cumberlege Commission in Britain advised that a protocol that did not comply with canon law would be ineffective. The CDF told the Australian Catholic Bishops Conference that clauses 39 and 40 of Towards Healing 2010 did not comply with canon law where it applies to clerics. They changed it in Towards Healing 2016. I understand the reluctance to admit the role of canon law. It is the unique responsibility of popes.

Secrecy? Bishop Robinson’s testimony at the Royal Commission doesn’t support this. Canon law is important to people with the difficulties you cite and to religious orders with property issues. It was also a factor in the Nestor case and in McAlinden’s threats to his bishop. But many victims don’t want their cases reported to police, as Fr Burston testified to the Newcastle/Maitland inquiry. Then the professional standards office persuaded him that he should do so anyway. Where did Canon Law figure in any of this? It has been largely ignored by bishops when they should have taken it seriously. As you say, the Australian response didn’t comply with Canon Law and had to brought into line with it. I don’t have any view of Canon Law. Again, as you say, most people not in trouble are not concerned with the law at all, but as an explanation of the abuse crisis, surely one would look to clericalism rather than an arcane expression of it as a cause of the cover ups.

Bishop Robinson’s opinion of the pontifical secret was not shared by 5 members of the Roman Curia, all of them canon lawyers, and four presidents of national bishops conferences. If bishops were to take canon law seriously, they could not report allegations of sexual abuse to the police, they could not start canonical proceedings for dismissal because of the 5 year limitation period (according to a 2000 study, only 3.2% of cases came within the period), and they were obliged to try and reform the priest before putting him on a canonical trial. As Bishop Robinson said, whatever the faults of the Australian bishops, the biggest obstacle to a proper response was the Vatican. You can’t separate law from culture, and while canon law was an expression of clericalism, its every existence entrenched that culture. If you want to change a culture the first thing that has to be done is to change the law which embodies it.

Kieran Tapsell’s recommendations to State and Territory Governments, to the Catholic Church in Australia and to the Holy See in his submission to the Royal Commission would ensure greater justice for victims of child sexual abuse by clergy and greater justice for perpetrators of it. The Holy See’s policies on this are completely unacceptable and inconsistent with the practice of the church for many centuries before 1917 and governments should insist The Holy See change its policies and procedures.

I’ll bet the former bishop of Toowoomba, William Morris, had a rye smile when he read “Bishops have supreme legislative, executive and judicial power within their own dioceses with canon law being their only restriction.”

Kieran Tapsell has been making these points about canon law consistently and correctly for years it seems, but nobody in authority has publicly acknowledged the problem so far as I know. Not even when doing a mea culpa at the Royal Commission. Are bishops ashamed of the dirty little secret, or are they too craven to risk getting offside with Rome. There might need to be some sort of peasants’ revolt, maybe a mass refusal to put money on the plate to shock the clergy into doing something positive to discourage child abuse by predators in their ranks.

Pope Francis’ status, described by Bruce Duncan as “one of the most significant world leaders”, is well-earned but as Kieran demonstrates Francis is regrettably failing to address dysfunctional Church governance and the cover up of child sexual abuse. Accountability is essential to good governance, and is central to any leadership consistent with the teachings of Jesus, but it is scandalously absent from the clericalist culture of the Church. The changes Kieran proposes to canon law are key but need to be augmented with other canonical, cultural and structural changes to Church governance to ensure accountability in decision making. The unaccountability of the Church’s leadership permitted its past and continuing shameful protection of child abusers, not to mention the many other decisions of Church leaders that are taken without the checks and balances of normal good governance practices. The inclusion of the laity and particularly women in decision making as proposed by Kieran is an essential first step to ensuring accountability. Pope Francis’ influence in the world will quickly evaporate with the already diminished influence of the Church more broadly if he fails to ensure a Church which is accountable for living the teachings of its founder.

There is a wonderful story about a Brisbane synod during the time of James Duhig. Cases were being proposed and “solved”. Sir James was puzzled. “What is that book to which you are referring for those answers?” he asked. “The code of Canon Law, your Grace”. “Well I commend it to you all. When I was busy establishing the archdioceses here I had no time for reading that book. But now I suggest you all read it”.
There is, or used be a Canon, (was it 209 ?) which stated that if the difficulty of observing a particular Canon outweighed the value for which the Canon stood then in those circumstances it did not oblige.
So what if rewritten and recent Canon Law forbids a bishop or priest from reporting cases to the police? Where is the primacy of individual conscience? And if Rome refuses to defrock an abuser cannot a bishop announce in the public notices in the paper that the person no longer has local authorization to act as a priest? And as underlies much of the above discussion who says a ‘man’ (person) has to be ordained to administer church matters? But to the man in the pub all this stuff is so far removed from the spirit of Christ or the New Testament, so separate from helping victims that it must be some cultist idle chat.

Secreta Continere of 1974 makes it very clear that there is no room for individual conscience over matters covered by the pontifical secret. Sacramentorum Sanctitatis Tutela of John Paul II of 2001 in art 25 says that cases involving hold sexual abuse by clerics are covered by the pontifical secret and it specifically incorporates Art 1(4) of Secreta Continere which applies the secret even to the allegations. Pope Benedict XVI in his revision of this decree in 2010 confirmed the same pontifical secret in Art 30. One can only admire bishops who defied canon law, but how many of them did?

Whenever there is a claim “that there is no room for individual conscience” you have to smell a rat. Quote all the numbers you like brackets and codicils latin names and the trappings of clericalism but you have to face Thomas Aquinas teaching of the supremacy of personal conscience. The natural law is superior to positive law and regulations. To claim as a defense the observing of a Vatican regulation is to claim the Nuremberg defense.

I agree with you, but you can’t ignore the existence of bad laws and those responsible for them. I hesitate to follow your analogy but you raised Nuremberg. To say that it was all the bishops fault is like saying that it was all the Nuremberg defendant’s fault and the Fuhrer’s orders had nothing to do with what happened.

It should by now be obvious to anyone — including the Pope — that canon law (about which Jesus said nothing) is an ineffective instrument for dealing with these crimes. Leave it to the police and the courts. If a cleric is convicted, defrock him. And the bishop should have the power to do that, subject, of course, to a right of appeal to the Holy See.

Governments have a powerful weapon at their disposal: breaking diplomatic relations with the Holy See. They should be prepared to use it.

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